When I think of a courthouse, I often envision a Doric-columned stately judicial building, focused on and controlled by judges. We often forget that many courts in this country are housed in multiuse government facilities. The courts in these facilities are often only tenants sharing functions with other government agencies. What happens when functions and roles intersect? Canon 1.7 of the Model Code calls us as court professionals to respond to inquiries about court procedures but to not to give legal advice. If asked for advice, we suggest someone with an inquiry may wish to contact an attorney. Sometimes the person giving advice does not work for the court. Is that individual subject to the court’s ethics code? If not, how do we convince them of our ethical viewpoint?
For years, Ned has been the first person the townspeople see when they walk through the front door of the municipal services building. He handles the customer service desk in the lobby where he freely gives out both information and advice. In his late 60s, Ned retired from the parks and recreation bureau years ago. He now works for slightly above minimum wage, mostly to get out of the house.
The municipal building is large and complex. It contains almost all city services including the water bureau, licensing department, police, the city prosecutor, waste management, the city manager, and the city court.
In his years at the desk, Ned has learned hints and tips folks need to know to navigate the bureaucracy. For instance, along with giving out maps, forms, and brochures, he reminds those coming to license their pets that they must first visit the vet to ensure Fido’s vaccinations are current. He knows the right forms to give citizens complaining to the prosecutor about ordinance violations. He has been known to tell folks fighting evictions to bring photographs of unrepaired apartment damage to show improper maintenance as a defense. He has directed people facing judgments for unpaid credit card debts to the bankruptcy court.
When the court administrator, Emily, told Ned to stop giving out legal advice, he indignantly replied that he doesn’t work for Emily. “I don’t give out bad advice and everyone appreciates what I say. No one has ever complained.”
Emily complained to the city manager, Everett, who told Emily in no uncertain terms: (1) Ned works for the city and not the court, (2) He does not act like a “typical bureaucrat,” (3) He provides valuable information and advice, (4) He helps keep evaluations on the city’s website feedback page very positive. Everett retorted that Emily’s court staff could even learn from how Ned operates instead of repeating that tired old mantra, “We can’t give out legal advice.”
Knowing the court is badly understaffed, Everett suggested court personnel might staff the service desk. Emily could not have her staff supplying information and forms for the city prosecutor while giving out information on court procedures. So, Emily complained to Judge Dithers, but since the city council hires the court’s judicial officers, Judge Dithers advised Emily to just let the matter go.
Emily thought of going to the local bar association, but no lawyer has complained in years. She also knows that it would quickly get back to Everett that Emily had “ratted” out Ned for giving advice. She doesn’t want the court to endure any more opposition from the city manager.
Here to comment on the ethical implications of non-court personnel dispensing court process advice are Kim Allison, court administrator for the First Judicial Circuit in Yankton, South Dakota; Matthew Pendy, criminal and traffic director for the Franklin County Municipal Court in Columbus, Ohio; and Kimberly D. Kierce, court administrator for the Richardson Municipal Court in Richardson, Texas.
Is it fair that Ned can be liberal with his advice, while court staff must limit their advice?
Kimberly Kierce thought it was fair since Ned is not a court employee and is not under the direction of a judge or the court administrator. He is giving information which, in Kim’s opinion, is not “legal advice,” and the public should not consider it as such. “Legal advice is not the same as legal information. Ned is not telling the public anything that requires legal skill or knowledge. It is still up to the public to take the information Ned tells them and legally do the proper thing (e.g., taking photos of apartment damage still requires those items to be admissible and filed properly, which Ned is not telling them how that is done).” Although Ned is handing out forms, he is not drafting documents or preparing legal instruments for filing. Neither is Ned being paid to provide such information. “It is still the public’s responsibility to ensure the form Ned gives them is the correct one for their purpose(s). The public takes on the risk of following the information (or advice) provided by another member of the public.”
Kim Allison considered Ned’s practice (which the city condones), not only unfair to the public, but a potential liability for both Ned and the city. He may be providing more “helpful” information to the general public than the court staff are legally and ethically able to provide. He may also be dispensing potentially harmful advice in addition to what was described. “Ned is not law trained, or even court trained, and is at serious risk of providing inaccurate information or advice to someone that could be legally detrimental to their case. In South Dakota, Ned would be subject to a civil injunction for providing legal advice without a law license, and may even be possibly liable for damages if he provided advice found to be detrimental to the party.”
Matthew Pendy agreed with Kim Allison, recommending that Ned should not be giving out legal advice as he is not an attorney.
Given that both Ned and Everett have rejected her demands, what can Emily do? Is it even Emily’s job to convince them to stop giving legal advice?
Matthew said that Emily should explain why it isn’t a good idea to give out legal advice. “In Ohio, this could be considered the unauthorized practice of law, which is a civil offense.”
Considering that Emily’s judge works for the city and has told her to drop it, Kim Allison thought Emily may have done all she could do. “There are most certainly times when it is worth the risk to push an issue past a certain point especially if the problem directly affects your court and/or staff, but I don’t think this is one of those times. I have certainly beat my head against a lot of brick walls when I thought the issue was important enough, but sometimes continuing the battle is not worth the potential fallout.”
While she can convince neither Ned nor Everett about how risky dispensing legal advice is, Kimberly Kierce proposed that Emily can work to redirect Ned. First, she can let Ned know about the criminal penalties for the unauthorized practice of law. Second, she can encourage him to possibly add to some qualifying comments, such as “Although I am not an attorney, what I have found is” or “This is not legal advice, but what can be useful is.” Emily can also suggest Ned direct certain legal questions to the proper personnel. “Emily can inform Ned that if the information he gives is construed as legal advice and it creates an issue for a citizen in the future, he may be facing criminal penalties resulting from his ‘helpful’ information.”
Has your court ever had to deal with non-court personnel (e.g., county or city employees) giving out information about the court?
All three have experienced law enforcement giving out incorrect information. Matthew mentioned police officers in his jurisdiction tell people to call the clerk’s office to request a new court date or to pay their ticket over the phone, neither of which the court does over the phone.
Kimberly Kierce also remarked police officers occasionally give out information even though they have been advised to not give any information about court processes or procedures. Instead, they should direct all questions to court personnel.
Kim Allison said that she was not aware this was an issue other than when law enforcement provides incorrect information to parties regarding their cases. “It can result in extremely unhappy customers at the clerk of courts counter.”
Does Everett have a point in not giving in to Emily’s demand?
Kim Allison noted that Everett’s motivation for letting Ned continue liberally giving out advice seems more rooted in maintaining positive feedback for the city than in legal realities. However, Kim does understand the impetus to help people who are in difficult situations and cannot afford an attorney. She established and runs a Legal Form Helpline to assist self-represented litigants in South Dakota to complete forms. “I know firsthand how difficult it can be to stay on the right side of the information/advice line. But while I am a firm believer in providing as much information on procedure and process as we are ethically able to rather than fobbing off all questions with ‘you’ll have to talk to an attorney,’ there are very good reasons why court personnel should not cross that line. Everett clearly does not have a good understanding of those reason, or he would be more leery of allowing his staff to continue the practice.”
Matthew suggested Everett should discipline Ned for giving out legal advice. “He could be sued for giving out legal advice. He isn’t an attorney and shouldn’t be acting as one.”
Kimberly Kierce said that city managers and staff should support other staff, employees, managers, and supervisors, etc. “Better leadership and communication skills are needed by that city manager to bridge a better solution rather than building a wall on the issue.”
Despite her misgivings, should Emily report Ned to the bar?
Kimberly Kierce noted that the unauthorized practice of law is a class A misdemeanor in Texas and could be filed against Ned by the Unauthorized Practice of Law Committee. “Educating Ned about the consequences of continued actions that may cross the line from ‘information’ to ‘advice’ may be warranted.”
Matthew suggested that Emily talk with her court leadership team to see how they as a group would like to proceed. “As a team, they can decide to contact the bar association or to tell Everett that if Ned’s behavior continues that they will be contacting the bar association.”
Kim Allison admitted that she would most likely not report Ned to the bar unless it was shown that Ned had provided potentially damaging advice. If that occurred, Kim thought that posting a sign at the clerk’s office counter warning people not to take advice regarding their case from anyone who is not an attorney. “[I]f Emily is a member of the bar then she would most likely have an ethical obligation to report Ned.”
My thanks to Kim Allison, Matthew Pendy, and Kimberly Kierce for their perspectives on non-court personnel giving legal advice. Variations of this question are always with us. Regularly revisiting the different aspects that this question provides always proves instructive.
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Do you have an ethics issue you think would be an interesting conversation topic? Would you like to be a respondent in a future column? Email me at email@example.com. Also, be sure to visit NACM’s ethics web page at https://nacmnet.org/ethics.
ABOUT THE AUTHOR
Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut.